Meacham v. Southern Railway Co.

Stacy, C. J. The one circumstance which saves the case from non-suit, Godwin v. R. R., 202 N. C., 1, 161 S. E., 541; Eller v. R. R., 200 N. C., 527, 157 S. E., 800, and carries it to the jury, Dancy v. R. R., 204 N. C., 303, 168 S. E., 200; Butner v. R. R., 199 N. C., 695, 155 *612 S. E., 601, is the presence of evidence tending to show low visibility from fog or mist. Parker v. R. R., 181 N. C., 95, 106 S. E., 755; Johnson v. R. R., 163 N. C., 431, 79 S. E., 690; Morrow v. R. R., 146 N. C., 14, 59 S. E., 158. Compare Loflin v. R. R., 210 N. C., 404, 186 S. E., 493; Weston v. R. R., 194 N. C., 210, 139 S. E., 237; Lee v. R. R., 180 N. C., 413, 105 S. E., 15. Opaqueness of the atmosphere, if established, increased the need of timely warning which the plaintiff had a right to expect, Quinn v. R. R., ante, 48, and heightened the need of attention on his part. Lee v. B. B., supra. Due care, i.e., commensurate care under the circumstances, was required of both. Small v. Utilities Co., 200 N. C., 719, 158 S. E., 385. The accepted standard under varying conditions is the conduct of the reasonably prudent man. Cole v. R. R., 211 N. C., 591, 191 S. E., 353. “The standard is always the conduct, of the reasonably prudent man, or the care which a reasonably prudent man would have used under the circumstances. Tudor v. Bowen, 152 N. C., 441, 67 S. E., 1015. The rule is constant, while the degree of care which a reasonably prudent man exercises varies with the exigencies of the occasion.” Diamond v. Service Stores, 211 N. C., 632, 191 S. E., 358. It follows, therefore, that the case should have been made to turn on the finding of this fact in accordance with the defendants’ prayer. Lee v. R. R., 212 N. C., 340; Lincoln v. R. R., 207 N. C., 787, 178 S. E., 601; Harris v. R. R., 199 N. C., 798, 156 S. E., 102. Speaking to the mutual and reciprocal duties of trainmen and travelers on approaching a public crossing, in Moore v. R. R., 201 N. C., 26, 158 S. E., 556, Adams, J., delivering the opinion of the Court, said: “When approaching a public crossing the employees in charge of a train and a traveler upon the highway are charged with the mutual and reciprocal duty of exercising due care to avoid inflicting or receiving injury, due care being such as a prudent person would exercise under the circumstances at the particular time and place. ‘Both parties are charged with the mutual duty of keeping a careful lookout for danger and the degree of diligence to be used on either side is such as a prudent man would exercise under the circumstances of the case in endeavoring to perform his duty.’ Improvement Co. v. Stead, 95 U. S., 161, 24 Law Ed., 403, cited in Cooper v. R. R., 140 N. C., 209. On reaching the crossing and before attempting to go upon it, a traveler must use his sense of sight and hearing- — -must look and listen for approaching trains if not prevented from doing so by the fault of the railroad company; and this he should do before entering the zone of danger. Johnson v. R. R., 163 N. C., 431; Holton v. R. R., 188 N. C., 277; Butner v. R. R., 199 N. C., 695. This, as we understand it, is the prevailing rule. At any rate it is observed and has often been applied by this Court.” *613 Plaintiff makes the point that the requested instruction is too narrow in that it omits the use of the word “mist” in connection with the word “fog.” It is true some of the witnesses speak of the “mist,” others of the “fog,” and in several instances, perhaps both words are used, but it is conceded that the two' were employed interchangeably throughout the trial. The gist of the prayer is, that unless plaintiff’s vision was obstructed or obscured, he ought not to recover, because admittedly he drove directly in front of an on-coming engine, which he should have seen but for the atmospheric condition. Bullock v. R. R., 212 N. C., 760; Harrison v. R. R., 194 N. C., 656, 140 S. E., 598; Coleman v. R. R., 153 N. C., 322, 69 S. E., 251; Cooper v. R. R., 140 N. C., 209, 52 S. E., 932. We think the substance of the instruction should have been given. Parks v. Trust Co., 195 N. C., 453, 142 S. E., 473; Baker v. R. R., 144 N. C., 36, 56 S. E., 553. The ease lends itself to much writing, as was said in Eller v. R. R., supra, but, in the end, it all comes to the single question whether the requested instruction should have been given. We are constrained to hold that it should. This necessitates another hearing. New trial. Seawell, J., took no part in the consideration or decision of this case.